FCC Commissioner Jonathan Adelstein suggests a way that XM Satellite and Sirius Radio could get an okay from him, and thus perhaps garner his vote--cap charges and be a little more consumer-sensitive in other ways. For example, he'd like to see more public interest programming on satellite radio. The Department of Justice has okayed the merger, but the FCC still must sign off on the deal. So far, things seem to have stalled. Read more here.

A jury has ruled in favor of Mattel in the Bratz v. Mattel infringement lawsuit, finding that Carter Bryant, the designer of the Bratz dolls, came up with the idea while working at Mattel. Read more here.

Joel M. Gora, Brooklyn Law School, has published "The Source of the Problem of Sources: The First Amendment Fails the Fourth Estate," in volume 29 of Cardozo Law Review (2008). Here is the abstract.

The effort to investigate and discover who leaked the identity of CIA agent Valerie Plame to journalist Robert Novak and other prominent reporters, and the subsequent prosecution of key White House aide, Scooter Libby in connection with that investigation, put on the national front burner the question of whether journalists have a right to protect their confidential sources. That has been a prominent First Amendment question ever since the Supreme Court's 1972 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), where a bare 5 to 4 majority broadly rejected First Amendment protection for confidential sources, though a concurring opinion left the door open to granting relief on a case-by-case basis. Since that time, the press has advanced its arguments on three fronts (1) persuading courts to recognize a qualified journalistic privilege on the basis of the Branzburg concurring opinion, (2) lobbying for so-called shield laws at the state level, and (3) seeking a federal shield law as well. The first tack had great success for about three decades, but then suffered two significant recent setbacks in the form of the opinion in the Plame matter, sharply rejecting constitutional protection, and another skeptical ruling by a very prominent appeals court judge. The state legislation route has successfully resulted in a doubling of the number of states that give journalists statutory protection. Finally, the federal legislative path has led, at this writing and quite surprisingly, to the strongest prospects in 35 years of passage of a strong federal shield law. This article surveys these various trends, from Branzburg through the federal shield bill, and concludes with some recommendations for journalists as well as lawyers as to the best way to establish the credibility of their claims.

The new documentary Roman Polanski: Wanted and Desired, which has caused a stir in artistic circles, is now agitating legal circles as well. Mr. Polanski, a noted director, and his attorney, Douglas Dalton, are asking the L. A. District Attorney's office to consider the information presented in the film, and perhaps recommend some kind of remedy in Mr. Polanski's case. He was convicted of statutory rape in 1978 and was awaiting sentencing when he fled the country for France, where he has lived ever since. Mr. Polanski and his attorney thought an agreement had been reached on the matter of sentencing; instead, the judge appeared to have changed his mind at the last minute. The film advances a theory to explain the change of mind. The New York Times discusses this twist in Mr. Polanski's fortunes in an article in today's issue.

Ronell Andersen Jones, Brigham Young University Law School, has published "Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media," forthcoming in the Minnesota Law Review. Here is the abstract.

For more than 30 years, proponents and opponents of a federal reporter's shield law have debated the necessity of a privilege for members of the news media and have disagreed sharply about the frequency with which subpoenas are issued to the press. Most recently, in the wake of several high-profile contempt cases, proponents have pointed to a perceived "avalanche" of subpoenas, while opponents have contended that the receipt of subpoenas by reporters remains very rare. This article summarizes the results of an empirical study on the question. The study gathered data on subpoenas received by daily newspapers and network-affiliated television newsrooms in a single calendar year, and then compared that data to numbers from an industry survey of the same population five years earlier. The article concludes that subpoenas are issued to the media with some regularity and that they are not limited to the media organizations or the substantive issues that have been involved in the highest-profile recent cases. In at least some categories - most notably subpoenas arising out of federal proceedings and subpoenas seeking confidential material - subpoenas to the press appear to be on the increase.

Cheryl B. Preston, Brigham Young Law School and Brent Little, Brigham Young University, have published "ICANN Can: Contracts and Porn Sites: Choosing `to Play Internet Ball in American Cyberspace'" at 21 Pacific McGeorge Global Business & Development Law Journal 79 (2008). Here is the abstract.

We argue in this article that the history and structure of the International Corporation for Assigned Names and Numbers (ICANN) illustrates that, despite its claims to the contrary, ICANN does now make and implement policy in non-technical areas of Internet governance. This article examines how ICANN-imposed obligations within the Domain Name System (DNS) have been used to implement those policy objectives. Efforts at protecting children from age-inappropriate sexually explicit material online should be as important a policy for ICANN as is protecting the economic value of big corporations trademarks. Terms within ICANN's Uniform Domain-name Dispute-Resolution Policy (UDRP) can be meaningfully engaged in helping countries carry out reasonable pornography regulation. This approach does not require radical changes in law or structure; instead, it enables governments to enforce Internet pornography and obscenity laws that have been difficult to enforce because of the Internet's borderless nature.

This Article describes how UDRP language, and the even more extensive language adopted by many ICANN-authorized registrars, registries and Internet service providers, gives the legal basis for removing Internet sites that violate the law. We then detail how this approach can be implemented in the United States under existing rules on jurisdiction and the reach of injunctions.

The Fourth Circuit has upheld a lower court ruling dismissing a defamation lawsuit brought by Dr. Steven Hatfill against the New York Times and reporter Nicholas Kristof. Mr. Kristof had discussed Dr. Hatfill in the context of the anthrax letters sent in the wake of the 9/11 attacks, linking him to the mysterious Mr. X. At the same time, the Department of Justice had identified Dr. Hatfill as a "person of interest" in the anthrax investigation. Dr. Hatfill and the Justice Department settled an invasion of privacy lawsuit last month. Read more here in a Times article. Here's a link to the case: Hatfill v. New York Times et al. Generally, the court holds that because Dr. Hatfill as a limited purpose public figure is required to show actual malice on the part of the defendants, and has not done so, the lower court properly dismissed the case.

George Monbiot comments on the expansion of the British libel law in a column for the Guardian here. Says Mr. Monbiot in part, "On the website of Craig Murray, the former British ambassador to Uzbekistan, you can read a letter his publishers have received from the law firm Schillings. It contains something I have never seen before: a threatened injunction against a book they haven't read and that won't be published until September. Acting on behalf of the "private security contractor" Tim Spicer, Schillings gave the publishers three days (the deadline was last Friday) to guarantee that the book does not defame its client, or face "an injunction to restrain publication". No publisher can afford to ignore a letter like this. Though libel is a civil rather than a criminal matter in this country, the consequences can be much graver than most criminal convictions. I would rather go to prison for a few weeks for committing a crime than spend five years fighting a libel case, then lose my house and my savings. It is better to be caught mugging than to be caught speaking freely."

Here's a link to Mr. Murray's website and the letter to which Mr. Monbiot refers.

New York City prosecutors wanted the name of an anonymous blogger on a site called "Room 8", which comments on city politics, so they sent a subpoena to the blog owners, who were understandably concerned. They asked for more information, which the prosecutors declined to give. Ultimately, the D.A.'s office withdrew the subpoena, but the issuance raises questions about when and why such subpoenas are issued, and whether bloggers are covered by ISP policies--and by reporter's shield privileges. Read more in a New York Times article in today's paper.

I posted a story last April last April about James Buck, the graduate student detained in Egypt for an unknown reason who managed to get word out of his arrest via Twitter. Mr. Buck was worried about the fate of his translator, Mohammed Maree, who remained in custody. Mr. Maree, a vet student, is now free, due to the efforts of many, many activists. Read more in a CNN story.

Tiffany & Company has lost its trademark infringment lawsuit against online auction site eBay. U.S. District Judge Richard Sullivan ruled that the venerable jeweler must watch out for fakes on the site itself. The judge accepted eBay's defense that it provides measures for owners of trademarks to ferret out infringers, and that it can't be held responsible simply for "generalized knowledge" that sellers offer fakes through its site. Here's the ruling. Read more here in a CNN story and here in an Agence France Presse story. Last month, the online auction house lost an infringement case to the conglomerate LVMH in a French court. eBay was ordered to pay $63 million and says it will appeal. Another case against eBay, brought by L'Oreal, is pending.

Los Angeles Times publisher David Hiller, a lawyer and veteran of the Reagan era Justice Department, has resigned after nearly two years of a bumpy but interesting ride at the paper. During his tenure, editors Dean Baquet and Jeffrey Johnson departed, and Sam Zell led a buyout that took the Tribune Company, the paper's owner, private. Read more here in a story from the Times.

Roger Shuler, an editor in the University of Alabama publications office, was terminated from that position earlier this year. He says it's for political reasons, notably because he has championed Democrat Don Siegelman, the former governor. The U said it was for other issues. Mr. Shuler appealed the termination, and won before an appeals board. However, he apparently will not be reinstated as an editor, it's unclear in what capacity the University is prepared to re-employ him. Read more here. Here's more from The Raw Story.

The American Family Association's policy of replacing the word "gay" with the word "homosexual" caused a problem on its website when Tyson Gay won the 100 meters at the U.S. Olympic trials last week. The AFA's blog software turned Mr. Gay into Mr. Homosexual, and except for that substitution, also seems to have copied an AP report about his accomplishments at the trials. Read more here in a Washington Post blogpost. Nevertheless, congratulations to Mr. Gay, and to the entire U.S. Olympic team and to everyone who competed, all around our nation.